Baff v The Forsight Foundation - [2000] NSWSC 457

CITATION: Baff v The Forsight Foundation [2000] NSWSC 457

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2255/00

HEARING DATE(S): 15, 17, 18 & 22 May 2000

JUDGMENT DATE: 22 May 2000

PARTIES :

Justine Baff by her tutor Krystyna Podsiadly (P)
The Forsight Foundation (D)

JUDGMENT OF: Hamilton J

COUNSEL : Jane Needham (P)
J P Phillips (D)

SOLICITORS: T A Murphy, Legal Aid NSW (P)
Gadens (D)

CATCHWORDS: EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Serious question to be tried - Balance of convenience - Efforts of State agencies to find plaintiff alternative accommodation - Shortness of time for which injunction sought.

LEGISLATION CITED: Community Services (Complaints, Reviews and Monitoring) Act 1993

CASES CITED: Baff v The Forsight Foundation [2000] NSWSC 382

DECISION: Interlocutory injunction granted for further finite period.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 22 MAY 2000

2255/00 JUSTINE BAFF BY HER TUTOR KRYSTYNA PODSIADLY v THE FORSIGHT FOUNDATION
JUDGMENT
HIS HONOUR:
1 I have already delivered a judgment in this matter: Baff v The Forsight Foundation [2000] NSWSC 382 (“my judgment”). On that occasion, Miss Needham, on behalf of the plaintiff, obtained a week’s adjournment and a coextensive injunction to permit the plaintiff to lay evidence before the Court before there was a more ample hearing of the application. The circumstances which give rise to the proceedings are at least shortly set out in my judgment, and this judgment should be read in conjunction with it. I commented in it that this matter was a somewhat distressing one and nothing has occurred to alleviate that situation. Some comment was made after the delivery of my judgment upon my use in it of the expression “severe mental and physical disabilities” in relation to the plaintiff. The complaint was perhaps just from the plaintiff's point of view in that, in the technical language used in relation to disability, her disabilities are characterised as moderate rather than severe. However, in dealing with her situation, one must face the position that the plaintiff is blind, that she suffers from congenital hydrocephalus, and that she has considerable behaviour problems. Exactly their extent and how well they have been handled is a matter of controversy in the proceedings. There is no doubt that she requires a high degree of care.
2 Since she has been ejected from the defendant’s home, “exited” is the jargon word used, she has been living with her mother in the mother’s home. No one else lives in that home. Her mother must work, as must most adult members of the community, to earn her keep. The situation would be serious indeed except that the Ageing and Disability Department (“ADD”) has provided funding which enables some form of proper care to be afforded to the plaintiff during her mother’s working hours, although a very heavy burden falls upon the mother out of those hours. It is fair I think to say that it is a situation which is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWSC 457
Decision Date: 22 May 2000

CaseChat Overview and Summary

In the case of Baff v The Forsight Foundation, the plaintiff sought an interlocutory injunction against the defendant, The Forsight Foundation, to prevent the termination of her accommodation services. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman. The plaintiff argued that the termination of her accommodation services would cause her significant hardship and distress, and sought an injunction to prevent the defendant from proceeding with the termination.

The court was required to determine whether the plaintiff had established a serious question to be tried, and whether the balance of convenience favoured granting an interlocutory injunction. The court also considered the efforts of state agencies to find the plaintiff alternative accommodation, and the shortness of time for which the injunction was sought. The court found that the plaintiff had established a serious question to be tried, and that the balance of convenience favoured granting an interlocutory injunction. The court also noted that the plaintiff had been actively seeking alternative accommodation, but had been unable to find suitable alternatives at this time.

As a result, the court granted the plaintiff an interlocutory injunction, preventing the defendant from terminating her accommodation services until a final determination of the case. The court emphasised that this was an interim order only, and that the final outcome of the case would depend on the evidence presented and the applicable legal principles. The court also noted that the defendant had the right to apply to vary or discharge the injunction if circumstances changed. The plaintiff was ordered to provide the court with regular updates on her efforts to find alternative accommodation.

Orders